Courtney Love is threatening to sue the makers of Guitar Hero over their representation of her late husband in Guitar Hero 5. Making her position (very) public, Ms. Love launched a “tirade” against Activision over Twitter, threatening to sue on behalf of “the Trust, the Estate, the LLC, the various LLCs, [and] Cobain Enterprises.” She also discouraged Cobain fans from playing the game. Love initially insisted that she had never given permission for Cobain’s appearance in the game, then alleged a breach of contract, leaving several unanswered questions about what contract actually existed.

The Guitar Hero developer responded by saying they had worked with Ms. Love on the game; in fact, she had provided them with photos and videos of the late singer. However, Ms. Love is more than displeased with the final product, with one feature of the game causing her particular grief–a functionality that lets Cobain lip-sync to Jon Bon Jovi.

This potential legal claim highlights the role of “publicity rights” in modern entertainment law. The ability of celebrities to pass on their persona to their heirs as a property right has been recognized in state law since the 1950s, with certain states, including California and Indiana, having very celebrity-friendly rules. However, the issue is increasingly complex and remains before state legislatures and courts. One reason for this is as technology improves it is possible to remaster long-dead celebrities into live-action–just think of commercials containing Fred Astaire, John Wayne, and Lucille Ball.

While Courtney may feel no love for Guitar Hero 5, this potential lawsuit demonstrates that the holders of publicity rights need to monitor contracts involving that right more closely than ever. Ms. Love has called Guitar Hero 5 a “travesty” and referred to the Guitar Hero developer as a “bully”–but at least she has a say in what is done with Cobain’s image. She could be in a jurisdiction that says publicity rights do not trump the First Amendment right to artistic free expression.

Donna Baldry

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